{"id":142006,"date":"2008-04-09T00:00:00","date_gmt":"2008-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramachandran-vs-the-commissioner-on-9-april-2008"},"modified":"2014-09-06T00:37:55","modified_gmt":"2014-09-05T19:07:55","slug":"ramachandran-vs-the-commissioner-on-9-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramachandran-vs-the-commissioner-on-9-april-2008","title":{"rendered":"Ramachandran vs The Commissioner on 9 April, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Ramachandran vs The Commissioner on 9 April, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 09\/04\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nA.S.No.51 of 2005\n\n1.Ramachandran\n2.P.N.Joshi\n3.Ramanathan\n4.Uthayakumar\t\t\t... Appellants\/Plaintiffs\n\nVs.\n\n1.The Commissioner,\n  H.R & C.E,\n  Nungambakkam High Road,\n  Chennai - 600 034.\n\n2.The Joint Commissioner,\n  H.R & C.E.,\n  Upstairs West Chitrai Street,\n  Madurai.\n\n3.Sri Ramanathasami Devasthanam,\n  Rameswaram through\n  Executive Officer,\n  Devasthanam Office, Rameswaram,\n  Ramanathapuram District.\t... Respondents\/Defendants\n\nPrayer\n\nAppeal filed under Section 75 of the Tamil Nadu Hindu Religious and\nCharitable Endowments Act, 1959, against the judgment and decree dated\n02.12.2003 passed in O.S.No.156 of 1998 by the  Sub Judge, Ramanathapuram.\n\n!For Appellants ... Mr.M.S.Balasubramania Iyer\n\n^For Respondents... Mr.So.Paramasivam,\n\t\t\tGovt. Advocate\n\t\t\tfor R.1 & R.2\n\t\t    Mr.S.Ramesh for\n\t\t    Mr.V.Raghavachari for R.3\n\n:JUDGMENT\n<\/pre>\n
\tThis appeal has been filed as against the judgment and decree dated
\n02.12.2003 passed in O.S.No.156 of 1998 by the  Sub Judge, Ramanathapuram.\n<\/p>\n
\t2. The parties, for convenience sake, are referred to hereunder according
\nto their litigative status before the trial Court.\n<\/p>\n
\t3. Broadly but briefly, narratively but pithily, the case of the
\nplaintiffs as stood exposited from the plaint could be set out thus:\n<\/p>\n
\t(i) The plaintiffs four in number, are the hereditary trustees of the
\nreligious institution known as Sri Kandamanaparvatham in Rameswaram, as found
\ndescribed in the schedule of the plaint.  It is a place of religious worship.
\nIt was founded by one Neelakanda Sivam @ Neelakanda Iyer @ Neelakanda Joshi, the
\nancestor of the plaintiffs about five hundred years ago.  The said founder
\nconstructed massive structure well within his property and installed the Peedam
\non which the sacred foot prints of Lord Rama was found.\n<\/p>\n
\t(ii) He started worshipping the Peedam and he constituted himself as
\nPoojari cum trustee of the said institution.  The genealogy has been furnished
\nby the plaintiffs.  As such, following the founder, his descendants namely the
\nsons and grandsons and thereafter, the male descendants of the founder have been
\nacting as Poojaries cum trustees of that institution and they have been
\nperforming Poojas and managing the institution.  The plaintiffs’ ancestor one
\nLoganathan Sivam was functioning as Poojari cum trustee.  Rama Iyer and Subba
\nIyer had no issues and Parvatha Iyer had four sons Loganatha Iyer, Anda Iyer,
\nNeelakanda Iyer and Neelakanda Bairava Iyer.  Mahadeva Iyer had a son by name
\nNeelakanda Sammana Iyer.  After the life time of Rama Iyer and his brothers, the
\nsons of Parvatha Iyer and Mahadeva Iyer succeeded to the office of hereditary
\ntrusteeship cum poojariship and they all together performed the poojas and they
\nmanaged the institution.\n<\/p>\n
\t(iii) It is well known that in Rameswaram, the famous temple of Sri
\nRamanathaswami is situated.  The pilgrims who visited that temple also visited
\nthe suit institution.  However, the construction was comparatively simple and
\nthere is no big tower or massive praharams.  Various kings belonging to the
\nNaicker Dynasty and the Sethupathi Dynasty who had contributed their wealth for
\nthe additional constructions of the said temple and for proper upkeep of the
\nsaid temple had made a permanent records of their contributions by causing
\nvarious inscriptions on the stone walls within the temple and by having their
\nimages and those of their ancestors carved out in the form of statues and
\ninstalling those statutes at various places within the temple premises.
\nFollowing the kings, Zamindars started having control over the said
\nRamanathaswami temple.  Neither the kings nor the Zamindars had control over the
\nhereditary trustees of the suit institution.\n<\/p>\n
\t(iv) In fact, Zamindar of Ramanathapuram issued pattas in the names of the
\nancestors of the plaintiffs for the suit property over which the institution is
\nsituated.  It was never treated as subsidiary institution of Sri Ramanathaswamy
\nTemple, even though Raja of the Ramanathapuram himself was the hereditary
\ntrustee of the said temple.  Sri Ramanathaswamy temple was managed by a Board of
\ntrustees headed by Raja of Ramanathapuram as the Chairman of Board of trustees.
\nBut, there was no Board of trustees for the suit institution.  During the year
\n1917, the then trustees of Sri Ramanathaswamy temple tried to install Hundial in
\nthe premises of the suit institution.  But, the ancestors of the plaintiffs
\nobjected to it and thereupon, such attempt was stopped.\n<\/p>\n
\t(v) The trustees of Sri Ramanathaswamy temple did not spend any money for
\nthe maintenance or upkeep of the suit institution.  The Deputy Commissioner, H.R
\n& C.E, Madurai initiated suo motu proceedings in O.A.No.2 of 1965 under the
\nTamil Nadu Act 22 of 1959 for determining the question whether the suit
\ninstitution was a public religious institution or not.  The grandfather of the
\nfirst plaintiff contested the matter.\n<\/p>\n
\t(vi) Thereafter, the Deputy Commissioner decided under Section 63(a) of
\nthe H.R & C.E Act that it is the public institution.  Thereupon, the suit was
\nfiled in O.S.No.31 of 1971 by the grandfather of the first plaintiff in the Sub
\nCourt concerned, for setting aside the order passed by the Deputy Commissioner
\nin O.A.No.2 of 1965.  The suit was dismissed holding that the suit institution
\nwas a public institution.  Challenging the same, A.S.No.287 of 1971 before this
\nCourt was filed by the grandfather of the first plaintiff.  Ultimately, this
\nCourt upheld the finding that the suit property  is a public religious
\ninstitution.  While holding so, this Court recognised the plaintiffs’ hereditary
\nright to manage the suit institution and perform the poojas.\n<\/p>\n
\t(vii) As such, the said institution was never considered as the subsidiary
\nshrine of Sri Ramanathaswamy temple.  After the judgment of this Court, the
\nplaintiffs filed O.A.No.17 of 1981 before the Deputy Commissioner, H.R & C.E,
\nunder Section 63(b) of the H.R & C.E Act, for declaration that the suit
\ninstitution was being managed by the successive hereditary trustees.  The third
\ndefendant contested the matter contending that the plaintiffs could claim only
\nPooja Mirashi right.\n<\/p>\n
\t(viii) On 04.05.1983, the Deputy Commissioner allowed the said O.A.No.17
\nof 1981, but on appeal, the Commissioner set aside the order by remanding the
\nmatter back to the Deputy Commissioner for deciding afresh.  Subsequently, the
\nDeputy Commissioner decided the matter dismissing the said petition.  Thereupon,
\nthe plaintiffs filed appeal in A.P.No.7 of 1993 before the Commissioner, who
\ndismissed it.  The  Deputy Commissioner as well as the Commissioner failed to
\nhold that the plaintiffs are the hereditary trustees of the said institution and
\nthey were not justified in holding that the suit institution is a subsidiary
\ninstitution of Sri Ramanathaswamy temple.\n<\/p>\n
\t(ix) The observations made by the Deputy Commissioner and the Commissioner
\nwere not in tune with the objections made by the ancestors of the plaintiffs for
\ninstallation of Hundial by the third defendant in the suit institution.\n<\/p>\n
\t(x) The documents available would demonstrate that the third defendant
\nnever treated the suit institution as one under its administration and in fact,
\nin some of the records maintained by the third defendant, the ancestors of the
\nplaintiffs attested as the hereditary trustees cum Poojaris of the suit
\ninstitution.\n<\/p>\n
\t(xi) The third defendant did not appoint any of the plaintiffs relating to
\nthe suit institution.  The plaintiffs and their ancestors of their own accord
\nand on their own right acted as hereditary trustees and Poojaris and thereupon,
\nby their open, continuance and exclusive possession of the suit institution,
\nthey prescribed their absolute right over the office of the hereditary trustees\n<\/p>\n
– poojaris also.\n<\/p>\n
\t(xii) The ancestors of the plaintiffs failed to move the Settlement
\nauthority for grant of ryotwari patta in their favour, even though they got
\npatta for the property within which the suit institution is situated under the
\nZamindar. When the State Government wanted to interfere with the possession of
\nthe ancestors of the plaintiffs relating to that property, they filed the suit
\nin O.S.No.26 of 1989 before the Sub Court, Ramanathapuram for upholding their
\nownership and other incidental reliefs.  The suit was decreed upholding the
\nclaim of the ancestors of the plaintiffs.  The third defendant did not obtain
\nany patta in their name relating to the property within which the suit
\ninstitution is situated.  Both the Deputy Commissioner and the Commissioner
\nfailed to appreciate all these facts, but decided wrongly O.A.No.17 of 1981 and
\nA.P.No.7 of 1993 respectively.  Accordingly, the plaintiffs prayed for the
\nfollowing reliefs:\n<\/p>\n
\t“(1) that the order made by the Commissioner H.R & C.E, in appeal A.P.No.7
\nof 1993 confirming the order made by the Deputy Commissioner (H.R & C.E),
\nMadurai, in O.A.No.17 of 1981 be set aside holding that the suit institution is
\nan independent religious institution managed and administered by the plaintiffs
\nand by their ancestors and their hereditary right to be in office of the
\ntrustees cum poojaries.\n<\/p>\n
\t(2) that the defendants to pay the costs of this suit to the plaintiffs,
\nand<\/p>\n
\t(3) for such other and further reliefs as this Honourable Court may deem
\nfit proper and necessary in the circumstances of the case.”\n<\/p>\n
\t\t\t\t(emphasis added)<\/p>\n
\t4. Per contra, denying and refuting, challenging and contradicting the
\naverments\/allegations in the plaint, the third defendant filed the refutatory
\nwritten statement which was adopted by the defendants 1 and 2, the gist and
\nkernel of it, would run thus:\n<\/p>\n
\t(i)  Neelakanda Sivam alias Neelakanda Iyer did not construct any
\nstructure or Peedam referred to in the suit.  Neither the plaintiffs nor their
\nancestors as set out in the genealogy have acted as hereditary trustees relating
\nto suit institution or the suit property concerned but the same formed part of
\nthe third defendant’s temple.\n<\/p>\n
\t(ii) The genealogy as found set out in the plaint is imaginary.  Ramar
\nPadam is held as a sacred spot and it is part of the public institution that is
\ntreated as part and adjunct of Sri Ramanathaswamy temple.  The Raja of Ramnad
\nand his successors treated the suit institution and the property as the part of
\nSri Ramanathaswamy temple. Sri Ramanathaswamy temple included within its fold
\nthe sub temples and places of worship including the suit institution.  The suit
\ninstitution and the premises have no independent existence.  Even in the year
\n1831, the suit property and the suit institution were under the control and
\nmanagement of Sri Ramanathaswamy temple.\n<\/p>\n
\t(iii) The renovations of the Gandhamathanaparvatham temple was undertaken
\nby the Sri Ramanathaswamy temple of Rameswaram every year and all expenditures
\nincurred for the said renovations were borne by Sri Ramanathaswamy temple as
\nevidenced by accounts.  The reports of the Engineering Personnel, measurements
\nand the values of the work done, have been reported to the management of  Sri
\nRamanathaswamy temple.  Among the members of the plaintiffs’ family, there were
\ndisputes which were decided by the civil Court.  The third defendant was not a
\nparty to those proceedings.  The suit institution is situated 3 Kms away from
\nSri Ramanathaswamy temple.\n<\/p>\n
\t(iv) In A.S.No.287 of 1971, this Court was pleased to uphold the
\nhereditary right of the Archakas,but not their right as the Trustees of Sri
\nRamanathaswamy temple.  The suit institution is managed by the trustees of Sri
\nRamanathaswamy temple.  The incident referred to in the plaint during the year
\n1917, cannot in any way enure to the benefit of the plaintiffs herein.  On
\nsympathetic consideration, the Archakars were allowed to receive gifts.  Such
\ngifts and payments to archakars are quite common, because such gifts are given
\nby the pilgrims to the Archakars for their own satisfaction.  The plaintiffs are
\nthe descendants of some of the Archakas of the main temple namely Sri
\nRamanathaswamy temple.  The plaintiffs are only the care takers and not the
\ntrustees.  Accordingly, the defendants prayed for the dismissal of the suit.\n<\/p>\n
\t5. The trial Court framed the following issues:\n<\/p>\n
\t(i) Whether the suit temple belonged to private parties or to the third
\ndefendant?\n<\/p>\n
\t(ii) Whether the plaintiffs are the hereditary trustees of the suit
\ntemple?\n<\/p>\n
\t(iii) Whether the order passed in A.P.No.7 of 1993 confirming the order in
\nO.A.No.18 of 1981 should be set aside?\n<\/p>\n
\t(iv) To what relief the plaintiffs are entitled?\n<\/p>\n
\t6. During trial, the first plaintiff examined himself as P.W.1 and Exs.A.1
\nto A.4 were marked.  D.W.1 was examined and Exs.B.1 to B.50 were marked on the
\nside of the defendants.\n<\/p>\n
\t7. During cross-examination, it appears, A.5 and A.6 were marked, but in
\nthe list of documents, they were not found incorporated.\n<\/p>\n
\t8. Ultimately, the trial Court dismissed the suit.\n<\/p>\n
\t9. Being aggrieved by and dissatisfied with, the judgment and decree of
\nthe trial Court, this appeal has been filed by the plaintiffs on the following
\nmain grounds among others:\n<\/p>\n
\t(i) The judgment and decree of the trial Court is against law and weight
\nof evidence.  The lower Court has not understood the crux of the case.  Based on
\nassumption, the trial court dismissed the suit.  The trial Court proceeded on
\nthe footing that since the suit institution is a public temple, it should be
\nbelonged to the third defendant.  It is not the case of the plaintiffs that the
\nsuit temple is not a public temple, but it is their case that they are the
\nhereditary trustees.  The evidence of D.W.1 was not considered by the trial
\nCourt and the suit institution was not referred to as the subsidiary institution
\nof the third defendant.\n<\/p>\n
\t(ii) The plaintiffs and the employees working in the suit institution were
\nnot appointed by the third defendant and this fact was not considered by the
\ntrial Court.  The third defendant is not having any document to show that the
\nHundials of the suit institution were brought to the accounts of the third
\ndefendant and the third defendant has not paid any salary to anyone in the suit
\ninstitution.  Rameswaram is one of the Zamin villages attached to Ramanathapuram
\nZamin and the State Government took it over as per the Tamil Nadu Estates
\n(Abolition and Conversion into Ryotwari) Act, 1948.\n<\/p>\n
\t(iii) The third defendant has not applied for ryotwari patta for the lands
\nbelonging to the suit institution.  The trial Court failed to appreciate the
\nsignificance of the suit O.S.No.26 of 1989.  Some well-wishers donated funds to
\nthe third defendant for effecting repairs in Sri Ramanathaswamy temple and in
\nthe suit institution and that would not enure to the benefit of the third
\ndefendant to claim right of administration over the suit institution.
\nAccordingly, they prayed for setting aside the judgment and decree of the trial
\nCourt and for decreeing the original suit.\n<\/p>\n
\t10. The points for consideration are:\n<\/p>\n
\t(i) Whether the plaintiffs are the hereditary trustees of the suit
\ninstitution and whether they adduced evidence before the trial Court in support
\nof their plea?\n<\/p>\n
\t(ii) Whether there is any infirmity in the orders passed by the Deputy
\nCommissioner and the Commissioner?\n<\/p>\n
\t11. Heard both sides.\n<\/p>\n
\t12. Both the points are taken together for discussion as they are
\ninterlinked and interwoven with each other.\n<\/p>\n
The Point:\n<\/p>\n
\t13. A re’sume’ of facts absolutely necessary and germane for the disposal
\nof this appeal would run thus:\n<\/p>\n
\tThe warp and woof of the case of the plaintiffs is that they are the
\nhereditary trustees of the suit institution namely  Gandhamathanaparvatham
\ntemple; the authority under the H.R & C.E Act, erroneously understood the scope
\nof Section 63(1)(b) of the H.R & C.E Act and instead of adjudging the hereditary
\ntrusteeship of the plaintiffs, they deviated from the main issue and held as
\nthough the suit institution is a subsidiary institution of Sri Ramanathaswamy
\ntemple; and without considering the probabilities and  the oral and documentary
\nevidence available on record, they decided against the plaintiffs.\n<\/p>\n
\t14. Whereas the nitty-gritty of the case of the third defendant is that
\nvoluminous ancient documents filed on the side of the third defendant, would
\ndemonstrate and prove that ever since 1895 onwards and even earlier to it, Sri
\nRamanathaswamy temple Devasthanam has been exercising effective control and
\ndomain over the suit institution called  Gandhamathanaparvatham temple and that
\nthe plaintiffs are none but the persons having Poojamirashi right as held in the
\nprevious proceedings by various Courts.\n<\/p>\n
\t15. Whether ‘Animus Domain’ relating to the suit institution, has been
\nwith the plaintiffs and their ancestors or with the third defendant, is the
\njudicial question in this case.\n<\/p>\n
\t16. On the side of the plaintiffs, the first plaintiff examined himself as
\nP.W.1 and Exs.A.1 to A.4 were marked through him.  Whereas Exs.A.5 and A.6 were
\nmarked during cross-examination of D.W.1.  Ex.A.1 is the impugned order passed
\nby the Commissioner, H.R & C.E Department, in A.P.No.7 of 1993 as against the
\nplaintiffs and Ex.A.2 is the notice dated 06.07.1998 addressed by the Deputy
\nCommissioner to P.W.1, N.Ramachandran.\n<\/p>\n
\t17. Ex.A.3 and Ex.B.49 are one and the same document filed on either side.
\nEx.A.3 (B.49) would reveal that the ancestor of the plaintiffs namely,
\nNeelakanda Bairava Iyer, S\/o.Neelakanda Parvatha Iyer, the first plaintiff’s
\ngrandfather, as revealed by the table of genealogy appended to the plaint
\nherein, filed the statutory suit in O.S.No.30 of 1971, for setting aside the
\norder of the Commissioner, H.R & C.E Department, in A.P.No.61 of 1970 and for
\nobtaining the relief of injunction as against the Commissioner, Hindu Religious
\nand Charitable Endowments, Madras, and the Executive Officer, Ramanathaswami
\nDevasthanam, Rameswaram, the third defendant herein, from interfering with the
\nsaid Neelakanda Bairava Iyer’s management and administration of the suit
\ninstitution.  The suit was dismissed by giving a finding that (i) Neelakanda
\nBairava Iyer, the plaintiff therein, the grandfather of P.W.1 (the first
\nplaintiff herein), (ii)Neelakanda Joshi, the third defendant therein, the father
\nof the plaintiff No.2 herein, and (iii) Radhakrishna Joshi, the fourth defendant
\ntherein, the father of the plaintiffs 2 and 3 herein, were not the owners the
\nsaid institution and they had no right of management and administration over the
\nsaid institution and declared the temple as the public institution.   Certain
\nexcerpts from Ex.A.3 (B.49) is extracted hereunder for ready reference:\n<\/p>\n
\t“10. … The origin of the temple it has already been found has been lost
\nin antiquity and at any rate cannot be traced to any ancestor of the plaintiff
\nand the defendants 3 to 5.  The management of the same has been with the second
\ndefendant-Devasthanam from the year 1891 onwards and the second defendant-
\nDevasthanam had been responsible for effecting major repairs and the maintenance
\nof the building.  No doubt, the plaintiff and the defendants 3 to 5 had also
\neffected repairs in the property but the same are trivial and of no great
\nconsequence.  Possession of the property had remained with the plaintiff and the
\ndefendants 3 to 5 but such possession can be traced to the pooja mirashi right
\nin the temple and not to absolute ownership therein.  Most of the devotees have
\noffered worship in the temple as of right and there is no instance of anybody
\nhaving been refused permission for worship in the temple.  The members of the
\npublic have been worshipping at the shrine without let hinderance.  There being
\nno idol in the property there has been no pooja at fixed hours and no festival
\nconnected with the temple.  Poojas are offered to the carved feets of Lord Rama
\nonly and devotees offer worship therein and therefore no expenses are involved
\nin respect of worship in the temple.\n<\/p>\n
\t(11) In the result, on an analysis of all the attendant circumstances, it
\nis clear that the suit property is a public temple within the definition of
\nSection 6(20) of the Tamilnadu Hindu Regligious and Charitable Endowments Act of
\n1959.\n<\/p>\n
\t(12) I therefore find on issue No.2  that Gandhamathana Parvatham temple
\nis a public temple.  I find on issue No.1 that the order of the Deputy
\nCommissioner which has been confirmed by the Commissioner, is not liable to be
\nset aside.  On Issue No.3 in view of my finding on issues 1 and 2, the plaintiff
\nis not entitled to the reliefs prayed for.  The defendants are entitled to their
\ncosts.”\n<\/p>\n
\t\t\t\t(emphasis added.)<\/p>\n
As such, the discussions and findings given in Ex.A.3 (B.49), are clearly
\nagainst the plaintiffs herein and it is binding on them.\n<\/p>\n
\t18. Ex.A.4, is the order dated 04.05.1983 passed by the Deputy
\nCommissioner in O.A.No.17 of 1981 which was set aside by the appellate
\nauthority.  However that order has been filed herein which has no relevance for
\nadjudicating this matter.  The admitted fact remains that as against the order
\nin Ex.A.4, the appeal was filed by the third defendant and thereupon, the matter
\nwas remanded back to the Deputy Commissioner concerned who gave a finding
\nsubsequently as against the plaintiffs herein.\n<\/p>\n
\t19. As against which, the plaintiffs filed A.P.No.7 of 1993 and the
\nCommissioner confirmed the order of the lower authority and dismissed the appeal
\nholding that the plaintiffs are not the hereditary trustees, as against such
\norder only, the statutory suit has been filed by the plaintiffs.\n<\/p>\n
\t20. Ex.A.5 is the booklet published by the third defendant under the
\ncaption “The Saga of Rameswaram Temple” by Somalay, during the year 1975.
\nEx.A.6 is the relevant page and in that the subsidiary temples of Sri
\nRamanathaswamy temple are found set out.\n<\/p>\n
\t21. The learned Counsel for the plaintiffs, placing reliance on Exs.A.5
\nand A.6 would submit that the suit institution was not stated as one of the
\nsubsidiary temples or the institutions of the third defendant.\n<\/p>\n
\t22. In fact, the arguments of the learned Counsel for the plaintiffs are
\nto the effect that such absence of specification of the institution namely
\nGandhamathanaparvatham in Ex.A.6 would go as against the third defendant’s
\nclaim.  Instead of the plaintiffs proving their case positively by producing
\nclinching evidence, they have gone to the extent of placing reliance on Exs.A.5
\nand A.6 and based on that, they pray the Court to infer that the third defendant
\nis having no right over the suit institution.  The learned Counsel for the
\nplaintiffs placing reliance on the alleged admissions of D.W.1, the official of
\nthe third defendant, would argue that D.W.1 admitted that the plaintiffs or
\ntheir ancestors were not appointed as Archakars of Poojaris in the suit
\ninstitution; no employees to do either secular or non-secular works in the suit
\ninstitution were appointed by the third defendant.  According to the learned
\nCounsel for the plaintiffs, those admissions by D.W.1 would demonstrate that the
\nthird defendant  had no control over the suit institution and that no budgetary
\nprovisions or accounts of the third defendant are available to prove that the
\nthird defendant exercised control over the suit institution.  Suffice to say,
\nsuch argument is neither here nor there.\n<\/p>\n
\t23. The onus of proof is on the plaintiffs to prove their case.  There is
\nno infinitesimal or minuscule or iota or shred of evidence in support of the
\nplaintiffs’ contention that they are hereditary trustees relating to the said
\ninstitution.  Ex.A.5 emerged only in the year 1975 and the records would speak
\nby itself that even as per the contention of the plaintiffs, the litigation
\nstarted between the third defendant and the plaintiffs’ ancestors several long
\nyears anterior to 1975; even as per Ex.A.3, the suit was of the year 1971
\nbetween the plaintiffs’ ancestors and the third defendant and in such a case,
\nEx.A.5 emerged during the year 1975 can never be treated as a piece of evidence
\nwhich the plaintiffs could rely upon it and no more elaboration is required in
\nthis regard.\n<\/p>\n
\t24. Ex.A.5 is a mere booklet of the year 1975 whereas in the litigation
\nearlier and in the voluminous documents filed on the side of the third
\ndefendant, the suit institution is found to be under the effective control and
\ndomain of the third defendant wherefore Ex.A.5 is never meant to be an authentic
\ndocument of the third defendant.  I am of the considered opinion that the
\nplaintiffs are preculded from placing reliance on Ex.A.5 and no more elaboration
\nis required  as the untenability of the plaintiffs’ plea is obvious and
\naxiomatic.\n<\/p>\n
\t25. It is therefore clear that absolutely without any evidence, the
\nplaintiffs are claiming that they are the hereditary trustees of the suit
\ninstitution.  Whereas the clinching and voluminous documents filed on the side
\nof the third defendant herein, in the earlier proceedings as well as in this
\nproceeding would demonstrate that the third defendant had active control and
\ndomain over the suit institution.  As such, merely based on the alleged
\nadmissions of D.W.1, the plaintiffs cannot build their case and in fact, D.W.1’s
\nanswer to the deposition is not in any way constituted an admission of the
\nplaintiffs case.\n<\/p>\n
\t26. The contention of the learned Counsel for the plaintiffs that the
\nauthorities under the H.R & C.E Department, were not justified in holding that
\nthis suit institution is a subsidiary institution of the third defendant, is not
\na sound argument, for the reason that on finding that the plaintiffs are having
\nno evidence on their side to prove their hereditary trusteeship, but on the
\nother hand, finding based on documents that the third defendant had effective
\ncontrol over the public institution namely Gandhamathanaparvatham, the
\nauthorities under the H.R. & C.E Department correctly held that for such suit
\ninstitution under the control of the third defendant, the plaintiffs cannot
\nclaim hereditary trusteeship.\n<\/p>\n
\t27. Trite, the law, is that the plaintiffs should prove the case.  The
\nplaintiffs having failed to adduce any evidence to prove their case, cannot try
\nto achieve success in the litigative battle by picking holes in the third
\ndefendant’s case.  As such, the appeal itself could be dismissed on that count.
\nHowever, for the purpose of comprehensively deciding the matter based on the
\nevidence placed before this Court, I proceed to discuss further the documents
\nfiled on the side of the defendants which highlight the untenability of the
\nplaintiffs’ case.\n<\/p>\n
\t28. Ex.B.1, the certified copy of the judgment passed by the District
\nMunsif, Ramanathapuram in O.S.No.67 of 1944 on 10.12.1945, would demonstrate
\nthat the said Neelakanda Bairava Iyer, the ancestor of the plaintiffs filed the
\nsuit for declaring his right of Poojamirashi in the suit institution and for
\nrecovery of half of the share of the income as against his relatives, Neelakanda
\nJoshi, Chinthamani Rao Joshi and Rathakrishna Joshi.  As already pointed out,
\naccording to the genealogy, the plaintiffs and the defendants therein are all
\nclose relatives and as per the plaint, they are the descendants of the alleged
\nfounder of the temple Neelakanda Sivam.\n<\/p>\n
\t29. In fact, the said suit shows internecine fight among the family
\nmembers and in that suit, the Court upheld their Poojamirashi right and allotted
\ntheir respective shares.  The relevancy of Ex.B.1 has been correctly highlighted
\nby the learned Counsel for the third defendant that the plaintiff himself in the
\nsaid suit clearly admitted that the third defendant had claim over the suit
\ninstitution.  An excerpt from Ex.B.1 is reproduced hereunder for ready
\nreference:\n<\/p>\n
\t“10. The plaintiff’s pleader further contends that these documents are not
\ngenuine and that they must have been got up to support their case as against the
\nDevasthanam in 1917, when they were first produced into Court.  It is in
\nevidence that there was some dispute between Rameswaram Devasthanam which
\nclaimed the suit temple and the predecessors of the parties in this suit.
\nExhibit D-2 is the certified copy of the list of documents filed in M.S.345 of
\n1917 on the file of the II Class Magistrate’s Court, Ramnad.  The above three
\ndeeds are mentioned therein and having been filed by the Parvatha Iyer the
\nplaintiff’s father.  But, as pointed out by the defendants’ pleader, these
\ndocuments have been filed by the plaintiff’s father himself into Court and if he
\nis alive now, he cannot plead against the same and the plaintiff who derives
\ntitle from his father cannot also go against the same.”\n<\/p>\n
\t\t\t\t\t(emphasis added)<\/p>\n
\t30. Ex.B.47, is the certified copy of the relevant written statement filed
\nby the third defendant before the II Class Magistrate, Ramnad in Roc.No.345 of
\n1917 which was relating to the proceedings initiated by the Magistrate and
\nreferred to in Ex.B.1 supra, and more specifically in the excerpt extracted
\nhereunder.  In the said written statement, it is found set out thus:\n<\/p>\n
\t“1.That there is no ground whatever for an action under Section 144 CCP.\n<\/p>\n
\t2. That no action can under law be taken on information laid by a telegram
\njust as in this case.\n<\/p>\n
\t3. That the petitioner has had no possession as contemplated under law in
\nexercise of any such of right, title or interest in the premises known as
\nGandhamana Parvadam.\n<\/p>\n
\t4.That the premises are the property of the Davastanam and in its
\npossession and the Devastanam has absolute manner of enjoyment.\n<\/p>\n
\t5. That the Devastanam in exercise of its right placed Hundyal in the
\npremises just as it has done in other places for pilgrims to present offerings
\nin a peaceful manner to the knowledge of the petitioner: the petitioner has no
\nmanner of claim to raise any objection whatever to the Devastanam doing this and
\nsimilar acts at its own premises. ……”\n<\/p>\n
As such, the stand of the third defendant herein is found spelt out as early as
\nin the year 1917 itself.\n<\/p>\n
\t31. Ex.B.2, the printed judgment dated 12.07.1947 passed by the
\nSubordinate Judge, Ramnad at Madurai, in A.S.No.91 of 1946, would reveal that
\nthe said Neelakanda Bairava Iyer challenging the judgment as in Ex.B.1, filed
\nthe said appeal.  The appellate Court slightly modified the judgment of the
\ntrial Court in respect of allotting share to the plaintiffs relating to
\nPoojamirashi right.\n<\/p>\n
\t32. Ex.B.3, the order passed by the Deputy Commissioner, in O.A.No.2 of
\n1965, in the suo motu proceedings initiated by him under Section 63(a) of the
\nMadras H.R and C.E Act, 1959 and in that order, he gave a clear finding that the
\nplaintiffs are having no right of hereditary trusteeship or ownership over the
\nsuit institution.  Certain excerpts from it, could be extracted hereunder for
\nready reference:\n<\/p>\n
\t“2. Sri Gandhmadhana Parvatham which is a two-storeyed mantapam in
\nRameswaram is at present in the management of the respondents 1 to 4 who claim
\nto be the owners of the same.  As a result of the obstructions created by the
\nsecond respondent when the Rameswaram Devasthanam has attempted to place a
\nhundial in the Gandhamadhana Parvatham, there arose a necessity to decide
\nwhether the said institution is a public religious institution or not.
\nProceedings have therefore been started under sec.63(a) of the Madras H.R & C.E
\nAct and notices have been served upon the respondents to show cause as to why
\nSri Gandhamadhana Parvatham at Rameswaram should not be declared as a religious
\ninsitution under Section 63(a) of the Act.  Rameswaram Devasthanam has applied
\nto be impleaded as a party to the proceedings and it has been added as such 5th
\nrespondent.\n<\/p>\n
\t3. The respondents 1, 3 and 4 remained exparte and the second respondent
\nhas filed a counter in which he has pleaded that Sri Gandhamadhana Parvatham is
\nnot a religious institution, but only a private family temple of the respondents
\nand his agnates who are the descendants of one Andu Perumal Iyer.  He has
\nalleged that the temple has no idol, flag-staff or balipeetam or even any
\nfestival and other indices to make it a public temple.  It has been treated as
\nthe private family temple of the respondents and their ancestors, and that it
\nwas never dedicated to the public.  The public have got no right of worship in
\nthe temple.  He has submitted that his grandfather Bairava Joshi Iyer renovated
\nthe temple in 1818 from his own funds and performed Kumbabishekam.  While so,
\nthe Rameswaram Devasthanam has attempted to place in the temple a hundial in the
\nyear 1917, which was successfully resisted by him and thereafter the Devasthanam
\ndid not interfere with the temple.  Even recently the respondent has spent about
\n200 rupees for the Kumbabishekam.  He has therefore pleaded that Sri
\nGandhamanaparvatham temple cannot be declared as a religious institution under
\nthe provisions of the Act.”\n<\/p>\n
\t33. The aforesaid excerpts would clearly highlight the prevaricative
\nstands of the plaintiffs herein.  The plaintiffs’ ancestors as found set out in
\nthe extract, took up the plea as though the entire suit institution is a private
\nfamily temple of the plaintiffs’ ancestors and it is not a public temple at all
\nand accordingly, they laid claim.  Whereas the third defendant herein disputed
\nthe same and contended that it is a public institution and it happened to be one
\nof the shrines attached to Sri Ramanathaswamy temple.  The Deputy Commissioner
\nconcerned, H.R & C.E Department observed as under:\n<\/p>\n
\t“6.POINT: Sri Gandhamadhana Parvatham temple is a two-storeyed mantapam
\nsituated at a distance nearly 2 miles in Rameswaram island to the north of Sri
\nRamanathaswami temple.  This temple stands on a raised platform over a hillock
\nwhich is said to be the part of the original hill where Sri Rama was advised to
\nestablish a Lingam.  The footprints of Sri Rama carved on a stone are placed in
\nthe centre of the lower building, and to these footprints pooja is performed.
\nThere is no denial of the fact that the respondents 1 to 4 have got a right to
\nperform the pooja in this temple.  This is evident from the fact that there was
\na litigation between the respondents themselves before a Civil Court, with
\nregard to the share of the right of pooja miras in the temple and it has been
\nsettled, that the second respondent is to have 1\/2 share while respondents 1, 3
\nand 4 to have the other half.  But, the mere fact that these respondents have
\ngot a right to perform the pooja in the temple would not by itself clothe them
\nto claim ownership of the temple.  In fact, the respondents 1, 3 and 4 remained
\nexparte in the enquiry and it is only the second respondent who now opposes the
\nclaim of Sri Ramanathaswami Devasthanam that Sri Gandhamadhana Parvatham is one
\nof the institutions attached to the Rameswaram Devasthanam.\t…
\n\t… The claim of the second respondent is that the temple in question has
\nbeen built on a private property which is about 25 acres in extent belonging to
\nhis ancestors.  The S.No. of this extent has been given as 518, but at the same
\ntime the second respondent is not able to produce any evidence to substantiate
\nthat this property belonged to his ancestors.  Except his own statement in the
\ncourse of his evidence as P.W.1, there is no other evidence to show that this
\nproperty belonged to the second respondent and his ancestors. …
\n\t… Under this circumstances, I do not think that we can rely upon these
\nreferences alone to come to the conclusion that the property in S.No.518 was
\nowned by the family of the second respondent.  …\n<\/p>\n
\t… Though in the counter that has been  filed by the second respondent
\nthere is mention that Sri Gandhamadhana Parvatham is a private family temple of
\nthe respondents and their agnates who are the descendants of one Pandu Perumal
\nIyer, it has not been specifically stated that it was only this Pandu Perumal
\nIyer who constructed the temple.  But he has asserted in the course of his
\nevidence that the temple has been built by his ancestors.  At the same time has
\nhas admitted that he did not have any record to show to substantiate his
\nallegation.  Indeed he has exhibited his ignorance with regard to the time when
\nthe temple was built or by whom it has been constructed by simply saying that it
\nwas a very ancient one.  Looking at the structure and the Vimanams of the
\ntemple, I do not think that the temple could have been built by any private
\nperson.\n<\/p>\n
\t… Under this circumstance, I am of the opinion that there is no absolute
\nevidence to show that the grandfather of the second respondent has renovated the
\ntemple at any time. …\n<\/p>\n
\t… It is clear from these documents that Rameswaram Devasthanam has been
\neffecting repairs, exercising rights of ownership over this temple and that the
\nDevasthanam authorities have been attending upon the management of the temple in
\nquestion. …”\n<\/p>\n
\t34. The Deputy Commissioner also in Ex.B.3 clearly found that after
\ninitial resistance by the ancestors of the plaintiffs herein, they did not
\nresist any more and that the third defendant continued to have control over the
\nsaid institution.  Another excerpt from it, would run thus:\n<\/p>\n
\t” … It may not be out of place at this juncture to note that in the
\nconservation notes No.V of 1910-1911 of the Archaeological Department, Southern
\nCircle, Madras a copy of which has been marked as Exhibit B.22 it has been
\nmentioned in item No.4 that Gandharmadhana Parvatham is under the charge of
\nRamanathaswami Devasthanam authorities.\n<\/p>\n
\t… But the other factor that is to be looked into in connection with the
\nGandhamadhana Parvatham temple is that the   respondents do not pay mandagapadi
\nfees as it is done by other private individuals.\n<\/p>\n
\t… In the absence of any judgment declaring the ownership of the family
\nof the respondents to Sri Gandhamadhana Parvatham temple we are not able to
\naccept the contention of the second respondent.\n<\/p>\n
\t9. Taking all the above factors into consideration we could safely come to
\nthe conclusion that Sri Gandhamadhana Parvatham at Rameswaram is a public
\nreligious institution and not a private family property of the respondents as
\ncontended by the second respondent.  The point is therefore answered in the
\naffirmative and the proceedings closed.”\n<\/p>\n
\t35. The Deputy Commissioner held that Gandhamathana Parvatham is a public
\ninstitution and the plaintiffs’ ancestors had no right of ownership over the
\nsuit institution and they declared that it as a public religious institution.
\nAs already highlighted above, Ex.A.3 (B.49) would reveal that the plaintiffs’
\nancestor Neelakanda Bairava Iyer filed the statutory suit after meeting with his
\nwaterloo in A.P.No.61 of 1970, which he filed as against the findings as
\ncontained in Ex.B.3.  The Sub Court in the said statutory suit, O.S.No.30 of
\n1971 as revealed by Ex.A.3 (B.49) upheld the order of the authorities under the
\nH.R & C.E Department that it is a public institution.\n<\/p>\n
\t36. It is an admitted fact that as against the judgment as contained in
\nEx.A.3 (B.49), A.S.No.287 of 1971 was filed before this Court which confirmed
\nthe judgment and decree of the trial Court holding the suit institution as a
\npublic institution.  Wherefore it is clear indubitably and incontrovertibly, the
\nsuit institution is a public institution and the authorities concerned negatived
\nthe specific plea of the plaintiffs’ ancestors that it was their exclusive
\nprivate temple and property.\n<\/p>\n
\t37. It is not insignificant to note that the plaintiffs cannot simply
\nignore the findings given in the previous proceedings that the plaintiffs’
\nancestors are not the owners of the property concerned over which the temple is
\nsituated and that the temple was not installed by them or consecrated by them.\n<\/p>\n
\t38. The learned Counsel for the plaintiffs would submit that in the
\nprevious proceedings under Section 63(a) of the Act, it was decided only to the
\neffect that the said institution was a public institution and nothing more and
\nnot about the hereditary trusteeship of the plaintiffs’ ancestors and their
\nright over the property concerned.  Such a distinction sought to be made by the
\nplaintiffs herein is one that of tweedledum and tweedledee.  The finding that it
\nis a public institution and that it did not belong to the ancestors of the
\nplaintiffs, are two sides of a coin and such findings are interlinked,
\nintertwined and interconnected with each other.\n<\/p>\n
\t39. Not to put too fine a point on it, had really the plaintiffs been the
\nhereditary trustees, then they could have pleaded so in the earlier litigation,
\nbut they did not do so, but on the other hand, they pleaded absolute ownership
\nwhich was negatived.  Thereafter, having a volte face and turning turtle, the
\nplaintiffs herein have come forward until a new plea as hereditary trustees
\nquite antithetical and contradictory to their earlier plea.\n<\/p>\n
\t40. In the previous proceedings, almost all the documents filed by the
\ndefendants in the present proceedings have been filed and based on that, in the
\nprevious proceedings, the authorities under the H.R & C.E Act, and the Courts
\nappreciated and held that the plea of the third defendant herein that it
\nexercised its effective control and domain over the suit institution and based
\non that alone, such verdicts emerged.  Now, it is only an afterthought on the
\npart of the plaintiffs herein to file one other application under Section 63(b)
\nof the Act, laying claim as though they are the hereditary trustees of the suit
\ninstitution having management and control over it independently to the exclusion
\nof the third defendant.\n<\/p>\n
\t41. I am of the considered opinion that the very averments in the plaint
\nare quite antithetical to the adverse finding which they got invited as against
\nthemselves in the previous proceedings and it is quite obvious from the above
\nnarration of facts and discussion of facts based on documents.\n<\/p>\n
\t42. The learned Counsel for the third defendant would appropriately and
\nappositely, correctly and convincingly, highlight that Exs.B.4 to B.39 marked
\nbefore the lower Court in this matter would evince and evidence, prove and
\ndemonstrate that the third defendant exercised effective control over the suit
\ninstitution even earlier to 1895 onwards.  He would also correctly argue that
\nall these exhibits were considered in the earlier proceedings and it was
\nlitigated upto this Court and adverse findings were given as against the
\nplaintiffs’ ancestors and in favour of the third defendant herein to the effect
\nthat the third defendant had control over the suit institution.\n<\/p>\n
\t43. The genuineness of Exs.B.4 to B.39 are beyond doubt and most of those
\nare all ancient documents having evidentiary value of their own and accordingly,
\nthe lower Court in page No.4 of the printed judgment, clearly considered the
\nrelevancy of the documents and held that the third defendant had control and
\neffective management over the suit institution.\n<\/p>\n
\t44. Ex.B.4, dated 12.11.1895, is the certified copy of Temple Supervisor’s
\nreport to Shri.Bhaskara Sethupathy Maharaja of Ramanathapuram Samasthanam, which
\nwas marked as Ex.B.11 in the earlier suit O.S.No.30 of 1971.   The perusal of it
\nwould clearly highlight that Raja of Ramanathapuram Samasthanam had control over
\nboth the temples, viz, Sri Ramanathaswamy Temple and  Sri Gandhamanaparvatham
\nTemple.  The trial Court also in its judgment unambiguously considered this
\naspect.  The suit institution is referred to in the eighth line of Ex.B.4.  As
\nsuch, it is an authentic ancient document clearly establishing the control of
\nthe third defendant and the management over the suit institution.\n<\/p>\n
\t45. It is just and necessary to refer the following documents as under:\n<\/p>\n
Sl.No.\n<\/p>\n
Exhibits
\nDated
\nDetails of Documents\n<\/p>\n
1.
\nEx.B.5
\n02.07.1895
\nPiece Work Agreement by Subbiah Kothan to Rameswaram Devasthanam.\n<\/p>\n
2.
\nEx.B.6
\n13.03.1904
\nCertified Copy of letter from Narayanasami Mudaliar to Rameswaram Devasthanam
\nGeneral Superintendent.\n<\/p>\n
3.
\nEx.B.7
\n19.03.1904
\nCertified copy of receipt by Narayanasami Mudaliar to the Khajana for Rs.200\/-.\n<\/p>\n
4.
\nEx.B.8
\n04.04.1904
\nCertified copy of entries in Measurement book No.6 of Rameswaram Devasthanam.\n<\/p>\n
5.
\nEx.B.9
\n15.04.1904
\nCertified copy of receipt by Narayanasami Mudaliar to Rameswaram Devasthanam for
\nRs.300\/-.\n<\/p>\n
6.
\nEx.B.10
\n24.05.1904
\nCertified copy of petition by Narayanasami Mudaliar to Rameswaram Devasthanam.\n<\/p>\n
7.
\nEx.B.11
\n19.05.1904
\nProgress report relating to Gandhamadhana Parvatham iron fencing work for April
\n1904.\n<\/p>\n
8.
\nEx.B.12
\n24.05.1904
\nCertified copy of receipt by Narayanasami Mudaliar for Rs.233.10.0\n<\/p>\n
9.
\nEx.B.13
\n19.06.1904
\nCertified copy of receipt by Kumaravelu Pillai for Rs.66.6.0\n<\/p>\n
10.
\nEx.B.14
\n19.06.1904
\nCertified copy of receipt by Soundaramuthu Pillai for Rs.80\/-.\n<\/p>\n
11.
\nEx.B.15
\n03.07.1904
\nCertified copy of receipt by Narayanasami Mudaliar for Rs.74.5.0\n<\/p>\n
12.
\nEx.B.16
\n15.04.1905
\nCertified copy of measurement book No.6 of Rameswaram Devasthanam.\n<\/p>\n
13.
\nEx.B.17
\n14.09.1905
\nCertified copy of receipt by Narayanasami Mudaliar\n<\/p>\n
14.
\nEx.B.18
\n20.11.1905
\nCertified copy of receipt by Narayanasami Mudaliar for Rs.132.7.0\n<\/p>\n
15.
\nEx.B.19
\n30.11.1905
\nCertified copy of receipt by Marimuthu Asari for Re.1\/-\n<\/p>\n
16.
\nEx.B.20
\n04.01.1906
\nCertified copy of receipt by Marimuthu Asari for Rs.2\/-\n<\/p>\n
17.
\nEx.B.21
\n20.09.1907
\nProgress report relating to Gandhamadhana Parvatham iron fencing work for
\nJanuary 1907.\n<\/p>\n
18.
\nEx.B.22
\n27.09.1907
\nProgress report relating to Gandhamadhana Parvatham iron fencing work for
\nFebruary 1907.\n<\/p>\n
19.
\nEx.B.23
\n05.10.1907
\nProgress report relating to Gandhamadhan Parvatham iron fencing work for March
\n1907.\n<\/p>\n
20.
\nEx.B.24.\n<\/p>\n
05.01.1908
\nProgress report relating to Gandhamadhana Parvatham iron fencing work for
\nNovember 1907.\n<\/p>\n
21.
\nEx.B.25
\n24.01.1908
\nProgress report relating to Gandhamadhana Parvatham iron fencing work for
\nDecember 1907.\n<\/p>\n
22.
\nEx.B.26
\n19.12.1897
\nEntries at Page 86 in the Ledger Accounts of Rameswaram Devasthanam.\n<\/p>\n
23.
\nEx.B.27
\n19.08.1913
\nCertified copy of Rameswaram Devasthanam file relating to repair to
\nGandhamadhana Parvatham.\n<\/p>\n
24.
\nEx.B.28
\n09.09.1913
\nCertified copy of office order by the trustee.\n<\/p>\n
25.
\nEx.B.29
\n10.10.1913
\nCertified copy of Dis.No.1545\/1913 with Vouchers of Rameswaram Devasthanam.\n<\/p>\n
26.
\nEx.B.30
\n18.09.1914
\nCertified copy of receipt for Rs.210\/- by Contractor T.Ramalinga Kothan for
\nrepair to steps in Gandhamadhana Parvatham and estimate etc.\n<\/p>\n
27.
\nEx.B.31
\n03.10.1914
\nCertified copy of receipt for Rs.149\/-.\n<\/p>\n
28.
\nEx.B.32
\n12.02.1915
\nCertified copy of Bill for repairing and improving Gandhamadhana Parvatham.\n<\/p>\n
29.
\nEx.B.33
\n24.02.1915
\nCertified copy of IV Bill and Final payment to T.Ramalinga Kothan.\n<\/p>\n
30.
\nEx.B.34
\n06.10.1907
\nProgress report relating to Gandhamadhana Parvatham iron fencing work for April
\n1907.\n<\/p>\n
31.
\nEx.B.35
\n09.10.1907
\nProgress report relating to Gandhamadhana Parvatham iron fencing work for May
\n1907.\n<\/p>\n
32.
\nEx.B.36
\n09.10.1907
\nProgress report relating to Gandhamadhana Parvatham iron fencing work for June
\n1907.\n<\/p>\n
33.
\nEx.B.37
\n08.01.1908
\nProgress report relating to Gandhamadhana Parvatham iron fencing work for
\nSeptember 1907.\n<\/p>\n
34.
\nEx.B.38
\n1902<\/span>
\nList of estimate relating to repairs to Rameswaram Koil to dig well near
\nGandhamadhana Parvatham for Rs.23\/-.\n<\/p>\n
35.
\nEx.B.39
\n17.04.1913
\nWork Statement of Rameswaram Devasthanam.\n<\/p>\n
\t46. As such, all the aforesaid exhibits are relating to the works and
\nrepairs carried out in the suit institution by the third defendant and it would
\nclearly torpedo the claim of the plaintiffs that the plaintiffs’ ancestors and
\nthe plaintiffs as hereditary trustees were allegedly exercising their effective
\ncontrol and management over the suit institution.  It is correctly held in the
\nprevious proceedings by the lower authorities and this Court that the
\nplaintiffs’ ancestors had only Poojamirashi right and nothing more.\n<\/p>\n
\t47. Had really, the plaintiffs and their ancestors happened to be the
\nhereditary trustees, they must have been able to produce at least some evidence
\nthat they also exercised their control over it and effected repairs.  The
\nprobability and demonstrability of the plaintiffs’ case, if true,  warrant
\nproduction of clinching documents. But, absolutely there is no evidence as
\nalready set out supra.\n<\/p>\n
\t48. Ex.B.40 is the list of documents relating to Mandagapadi of
\nGandhamadhana Parvatham maintained by the third defendant which also supports
\nthe case of  the third defendant.\n<\/p>\n
\t49. Ex.B.41, dated 06.11.1894, is the certified copy of the letter from
\nAg.Head Assistant Magistrate of Ramanathapuram to Rameswaram Devasthanam, to
\neffect repairs concerning the steps in the suit institution.  This adds strength
\nto the case of the third defendant and proves that the case of the plaintiffs is
\ntotally unsustainable.\n<\/p>\n
\t50. Ex.B.42, dated 05.07.1911, is the certified copy of the letter from
\nAg.Sub Collector, Ramanathapuram to Rameswaram Devasthanam, recognising the
\ndomain and control of the third defendant over the suit institution and
\ndirecting the third defendant to perform certain ameliorating steps.\n<\/p>\n
\t51. Ex.B.43, dated 03.10.1831, is the certified copy of judgment in
\nNo.2172 of 1831, on the file of the District Munsif’s Court, Paramakudi, which
\nreveals that there was litigation among the ancestors of the plaintiffs relating
\nto Poojamirashi right only.\n<\/p>\n
\t52. Ex.B.44, dated 02.12.1968, is the certified copy of Field Map No.518,
\nF.M.Book.  Ex.B.45, dated 02.12.1968 is the certified copy of Adangal for 518\/1,
\nRameswaram village, for the fasli year 1377  and that would not in any way enure
\nto the benefit of the plaintiffs to lay claim over the suit institution.\n<\/p>\n
\t53. Ex.B.46, dated 07.09.1971, is the certified copy of the written
\nstatement of the defendants 3 to 5 (who are the ancestors of the plaintiffs
\nthemselves) in O.S.No.30 of 1971.  Certain excerpts from it, would run thus:
\n\t“3. The plaintiff and these defendants and their predecessors belong to
\nMaharashtra Brahmin Community.  A few generations ago, the predecessor of this
\nfamily migrated to Rameswaram like other Maharashtra Brahmin families who came
\nto Rameswaram and settled.  Out of this community, archakas are being appointed
\nin Sri Ramanathaswami temple for a very long time.  Similarly in the suit temple
\nalso, the family of these defendants have been doing the pooja service and have
\nbeen enjoying the income thereon.  A perusal of ancient records will show that
\nthe plaintiff and these defendants and their predecessors have been claiming
\npooja rights on miras basis and there had been disputes regarding the same.
\n….\n<\/p>\n
\t4. The plaintiff and these defendants’ predecessors were similarly
\nperforming pujas and enjoying the income of the temple and in as much as there
\nwere no Trustees for the temple, the predecessors were effecting minor repairs
\nwhenever needed from out the income enjoyed by them from the temple.   ….\n<\/p>\n
\t5.  … During festival in the months of Ani, Adi, and Masi, Sri
\nRamanathaswami is taken to Gandhamadhana Parvatham and the public attend the
\nfunctions connected with the festivals in large number.   ………..”
\nAs such, the aforesaid excerpts from the written statement filed by the
\nplaintiffs’ ancestors viz, Neelakanta Joshi, Radhakrishna Joshi and Chinthamani
\nJoshi, would completely torpedo the case of the plaintiffs herein.\n<\/p>\n
\t54. Ex.B.48, dated 01.06.1991, is the Kattalai Register, which would show
\nas to how the third defendant exercised its control over the suit institution.\n<\/p>\n
\t55. The plaintiffs’ contention that their ancestors are the hereditary
\ntrustees and hence, the plaintiffs herein are also hereditary trustees is
\nnothing but a plea emerged out of mere figment of imagination. But, the
\nplaintiffs’ ancestors themselves in Ex.B.4, clearly and categorically admitted
\nthat they are not the hereditary trustees; they had no right or control over the
\nsuit institution; it has been declared as public institution; they also accepted
\nsuch status and they are having the right only to do poojas and enjoy the income
\nthat they got for doing poojas and nothing more.  Put simply, the deposition of
\nP.W.1 is nothing but his ipsi dixit having no evidence to buttress and fortify
\nit.\n<\/p>\n
\t56. In this factual matrix, my mind is redolent with the maxim “Allegans
\ncontraria non est audiendus.” {He is not to be heard who alleges things
\ncontradictory to each other.}.  Here, the said maxim is squarely applicable as
\nagainst the plaintiffs, due to the fact that quite antithetical to the stand of
\ntheir ancestors, they placing reliance on their alleged non-existing rights, are
\nclaiming hereditary trusteeship concerning the suit institution.\n<\/p>\n
\t57. The plaintiffs’ reliance on the judgment in O.S.No.26 of 1989 filed
\nbefore the Sub Court, Ramnad, is admittedly covered by the appeal filed before
\nthis Court in A.S.No.287 of 1971 which is pending.  In that, the plaintiffs and
\nthe Government are only the parties and not the third defendant.\n<\/p>\n
\t58. I would recollect the famous maxim “Non potest adduci exceptio ejusdem
\nrei cujus petitur dissolutio.” {A matter, the validity of which is at issue in
\nlegal proceedings, cannot be set up as a bar thereto.} is also applicable in
\nthis facutal matrix.\n<\/p>\n
\t59. It is pertinent to note that in paragraph No.IV of the plaint, it is
\nalleged as under:\n<\/p>\n
\t“IV. the suit property is a place of religious worship.  It was founded by
\nan ancestor of the plaintiffs.  The institution is very old and its origin is
\nnot definitely known and is out of human memory.  The tradition is that it was
\nfounded by one Neelakanda Sivam alias Neelakanda Iyer alias Neelakanda Joshi, an
\nancestor of the plaintiffs about 500 years ago.  He constructed the massive
\nstructure well within his property and he installed the “PEEDAM” on which the
\nSacred Foot Prints of THE LORD Sri RAMA was carved.  He arranged for the daily
\nworship of the ‘Peedam’ and he constructed mandapam and constituted himself the
\npoojari cum trustee of the institution.”\n<\/p>\n
\t60. The excerpts cited supra would run counter to the claim of the
\nhereditary trusteeship of the plaintiffs.  Once, indubitably and indisputably
\nthe very temple itself is ancient and it has been in existence from time
\nimmemorial and beyond human memory, it is not known how the plaintiffs could
\ncontend that five hundred years ago, their ancestor is the founder.  It is not
\nthe case of the plaintiffs that Lord Rama’s foot prints were noted by the
\nplaintiffs’ ancestor only recently in the suit institution after they migrated
\nfrom Maharastra.\n<\/p>\n
\t61. The concept ‘hereditary trustee’ ushered in by the plaintiffs is a
\nmisconceived one.  Section 6(11) of the Tamil Nadu Hindu Religious and
\nCharitable Endowments Act, 1959, is extracted hereunder for ready reference:
\n\t“Section 6(11). ‘hereditary trustee’ means the trustee of a religious
\ninstitution, the succession to whose office devolves by hereditary right or is
\nregulated by usage or is specifically provided for by the founder, so long as
\nsuch scheme of succession is in force;”\n<\/p>\n
\t\t\t\t(emphasis supplied.)<\/p>\n
\t62. It is therefore crystal clear that the definition ‘hereditary trustee’
\npresupposes that there should be ‘a founder’.  If the founder dedicated his
\nproperty for the purpose contemplated under the Tamil Nadu H.R & C.E Act, and
\nprescribed the mode of trustees being appointed by the hereditary trustee, then
\nthe question of hereditary trusteeship would come into operation.  But, a mere
\nreading of the aforesaid definition vis-a-vis the averments in the paragraph
\nNo.4, and other parts of the plaint would non-suit the plaintiffs.\n<\/p>\n
\t63. The learned Counsel for the plaintiffs would also develop his
\narguments that simply because the third defendant spent some amount given by the
\ndonors for being spent on the suit institution, there is no hard and fast rule
\nthat it should be assumed that the third defendant was exercising control over
\nthe suit institution and it should be treated as third defendant’s subsidiary
\ninstitution.\n<\/p>\n
\t64. If really, the donor wanted to spend money on the suit institution, it
\nis not known as to why such donor had not directly given the amounts to the
\nplaintiffs or their ancestors.\n<\/p>\n
\t65. If really, the plaintiffs or their predecessors happened to be the
\nhereditary trustees, then they should have asked the third defendant to give
\nsuch part of the donation to them and in turn, they ought to have spent it on
\nthe suit institution.  But, that was not the case of the plaintiffs.  In such a
\ncase, the argument put forth on the side of the plaintiffs, is neither here nor
\nthere and they cannot approbate and reprobate.\n<\/p>\n
\t66. The plaintiffs, unconvincingly contended that the lower authorities
\nwere not justified in holding that the suit institution is a subsidiary of the
\nthird defendant; it was beyond the scope of Section 63(a) of the Act; and if at
\nall, any action to be taken, it should be under Section 23 of the Act.\n<\/p>\n
\t67. The learned Counsel for the plaintiffs cited the following decisions:\n<\/p>\n
\t(i) Madana Palo and others v. The Hindu Religious Endowments Board, Madras<\/a>
\nreported in 1937 (II) MLJ 830.\n<\/p>\n
\t(ii) Raj Kali Kuer v. Pam Rattan Pandey<\/a> reported in 1955(II) MLJ 49.\n<\/p>\n
\t(iii) Subramania Pillai v. Trustees, Temple Group reported in 1977 (II)
\nMLJ 77.\n<\/p>\n
\t(iv) The unreported decision of the Honourable Apex Court in M.S.V.Raja &
\nAnother v. Seeni Thevar & Others<\/a> in Civil Appeal No.2417 of 1992.\n<\/p>\n
\t68. The first decision cited supra in Madana Palo’s case, of this Court is
\nrelating to the case where a grant was given to an individual and to his
\nsuccessors by the Inam Commissioner and thereupon, the dispute arose among the
\ndescendants and in that context, this Court held about the rights of the
\nhereditary trustees to continue.  Here, my above discussion would highlight that
\nthe facts are entirely different and the plaintiffs have not proved that at any
\npoint, their ancestors are the trustees of the suit institution and as such,
\nthere is no question of hereditary trusteeship would arise.\n<\/p>\n
\t69. The second decision cited in Raj Kali Kuer’s case, is on a set of
\nfacts where the hereditary rights of Pujari or Archaka was involved and the
\nquestion arose as to whether a female could be appointed as a trustee by
\ninheritance and in that context, the Honourable Apex Court held that a female
\nalso could inherit the hereditary trusteeship and perform pooja through her
\nproxy and as such, it is having no application to the case on hand and no more
\nelaboration is required.\n<\/p>\n
\t70. The third decision in Subramania Pillai’s case is on a set of facts
\nwherein a public trust was recognised, but among the family members concerned,
\nthere was a dispute and in that context, the Court held that it could be decided
\nby the Court who should be the hereditary trustee and the comments applied
\nrelating to the first decision are also applicable to this case.\n<\/p>\n
\t71. In the fourth decision in M.S.V.Raja’s case, the facts concerned that
\nthere was a factual finding to the effect that from time immemorial, the
\nreligious denomination of a community of Raju of Singarajakottai were
\nadministering the temple and among them, the trustees were elected.  However,
\nPandarams were engaged to perform pooja as Poojaris and those Pandarams claimed
\nhereditary trusteeship, but it was negatived.  In those circumstances, the Court
\nultimately held that the suit temple is a public temple and the management of
\nthe suit temple with the religious denomination of Rajus and the relief of
\ndeclaration and injunction so far it relates to worship in pooja according to
\nusage by Pandarams in the temple is rejected.  But, here, absolutely my above
\ndiscussion would show that the facts are entirely different that the plaintiffs
\nhave not proved that they are hereditary trustees.\n<\/p>\n
\t72. Hence, all the above four decisions are, in my considered opinion, out
\nof context.\n<\/p>\n
\t73. To the risk of repetition, without being tautologous, I would hold
\nthat in view of the overwhelming evidence available on the side of the third
\ndefendant and in order to hold that the plaintiffs and their predecessors were
\nnot justified in contending that they acquired ownership right or any other
\nright of management over the suit institution, naturally it warranted those
\nauthorities to discuss and hold that the suit institution is the subsidiary one
\nof the third defendant and in such a case, I do not see any infirmity in the
\njudgment of the trial Court in holding that the suit institution is the one of
\nthe subsidiary institutions of the third defendant and that the third defendant
\nis having effective control over it.\n<\/p>\n
\t74. The learned Counsel for the plaintiffs would submit that no steps were
\ntaken by the temple authorities to obtain patta under the Act 26 of 1963, while
\nadmitting that, the plaintiffs’ ancestors had not taken any steps to get one in
\ntheir favour.  My mind is redolent with the maxim “Let the accuser be free from
\naccusation”.  Here, it will not lie in the mouth of the plaintiffs to contend as
\nto why the third defendant did not get patta while they themselves, in fact, had
\nnot obtained one in their favour.  It is the plaintiffs who approached the Court
\nfor relief and forgetting the same, they raise untenable pleas.\n<\/p>\n
\t75. In fact, the Government records would speak volumes that the
\nGovernment recognised the pre-existing right of the third defendant even before
\nthe commencement of Act 26 of 1963.  So, in such a case, as per the provisions
\nof Act 26 of 1963, the third defendant’s right over the suit institution is
\nbeyond challenge.\n<\/p>\n
\t76. Trite, the proposition of law, is that irrespective of the issuance or
\nnon-issuance of patta, the pre-existing right of the individuals concerned,
\ncould be asserted before the Civil Court.  Here, the plaintiffs only approached
\nthe Court, but they never filed any documents to assert their pre-existing right
\nover the property.  Whereas the documents filed on the third defendant’s side
\nwould speak in favour of the third defendant’s right over the suit institution.\n<\/p>\n
\t77. Hence, considering all these facts, a fortiori, the plaintiffs had no
\ncase at all to put forth before the Civil Court claiming that they are the
\nhereditary trustees.  Accordingly, au fait with law and au curante with facts,
\nthe trial Court correctly dismissed the original suit.  The application filed
\nunder Section 63 (b) of the Tamil Nadu Hindu Religious and Charitable Endowments
\nAct, is turned out to be an ill wind that blew no one any good.\n<\/p>\n
\t78. Accordingly, the Point No.1 is decided to the effect that the
\nplaintiffs are not hereditary trustees of the suit institution and they have not
\nadduced any significant evidence in support of their plea.  The Point No.2 is
\ndecided to the effect that there is no infirmity in the orders passed by the
\nDeputy Commissioner or the Commissioner concerned.\n<\/p>\n
\t79. In the result, the appeal is dismissed, confirming the judgment and
\ndecree dated 02.12.2003 passed in O.S.No.156 of 1998 by the  Sub Judge,
\nRamanathapuram, without costs.\n<\/p>\n
rsb<\/p>\n
To<\/p>\n
The Sub Judge, Ramanathapuram.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ramachandran vs The Commissioner on 9 April, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09\/04\/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.51 of 2005 1.Ramachandran 2.P.N.Joshi 3.Ramanathan 4.Uthayakumar … Appellants\/Plaintiffs Vs. 1.The Commissioner, H.R & C.E, Nungambakkam High Road, Chennai – 600 034. 2.The Joint Commissioner, H.R & C.E., […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-142006","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nRamachandran vs The Commissioner on 9 April, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramachandran-vs-the-commissioner-on-9-april-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramachandran vs The Commissioner on 9 April, 2008 - 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